HKSAR v. Chan Yee Lap

[English Translation – 英譯本]

CACC 202/2017

[2018] HKCA 466

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 202 OF 2017

(ON APPEAL FROM DCCC 936 / 2016)

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Before: Hon Yeung VP, Poon and Pang JJA

Date of Hearing: 27 July 2018

Date of Judgment: 27 July 2018

Date of Reasons for Judgment: 6 August 2018

Reasons for Judgment

Hon Yeung VP (giving the Reasons for Judgment of the Court):

Introduction

1.The appellant (CHAN Yee Lap) and several other defendants (including an instructor surnamed LEUNG (Instructor LEUNG) who worked at the Correctional Services Department) faced a charge sheet comprising a total of 8 charges.

2.The charges against the appellant consisted of Charge 1, Charge 2, Charge 3, Charge 4 and Charge 5 of conspiracy to defraud and Charge 8 of failing to surrender to custody without reasonable cause.

3.After pleading guilty to Charge 1, Charge 4 and Charge 5 of conspiracy to defraud and Charge 8 of failing to surrender to custody without reasonable cause before Deputy District Judge Jason Wan (trial judge), the appellant was sentenced to a total of 11 months’ imprisonment. The other two charges of conspiracy to defraud against the appellant were left on the court’s file. On the three charges of conspiracy to defraud to which the appellant pleaded guilty, the trial judge adopted a starting point of 12 months and reduced the sentence of each charge by a quarter to 9 months on account of the appellant’s guilty plea. The sentences of the three charges were ordered to run concurrently. On Charge 8 of failing to surrender to custody without reasonable cause, the trial judge adopted a starting point of 3 months and reduced it by one third to 2 months on account of the appellant’s guilty plea.  The trial judge ordered the 2-month sentence to run consecutively to the 9-month sentence on the 3 charges of conspiracy to defraud.  The appellant was to serve a total sentence of 11 months.

4.The appellant appealed his sentence having been granted leave by a single Justice of Appeal.  However, upon a hearing, this Court dismissed the appeal.  Below are our Reasons for Judgment.

Background facts

5.At the material time, the appellant was an inmate in the Tong Fuk Correctional Institution. Charge 1 alleged that from June to July 2014, the appellant submitted to Instructor Leung 15 letters he had written on behalf of another inmate, and Instructor Leung sent out the images of the 15 letters to NGAI Sin-yee (“NGAI”) from his mobile phone in order to arrange for KWOK Hoi-yan (“KWOK”) to pay a fraudulent visit by posing as AUYEUNG Tin-lun’s (“AUYEUNG”) stepdaughter. The contents of the 15 letters were related to 3 serving inmates of the Tong Fuk Correctional Institution and they were for the purpose of arranging some fraudulent visits. As a result, KWOK misrepresented herself to be the stepdaughter of AUYEUNG, one of the inmates, and with his consent, took out cash of $10,000 from his prisoner’s property.  NGAI, as instructed, deposited $8,500 in the bank account of a male, and the remaining $1,500 was received by NGAI and KWOK as a reward for their assistance in arranging the fraudulent visit. (Charge 1)

6.In September 2013, the appellant requested another inmate YAU Sai-seung (“YAU”) to pay some debts. As suggested by the appellant, YAU agreed to let the appellant arrange some fraudulent visits for him so that the visitors could take out money from his prisoner’s property. As a result, the appellant prepared 3 letters, passed them to Instructor LEUNG, who then sent out the images of the letters to SZE Yee (“SZE”) on “WeChat”, and made the false claim that SZE was YAU’s wife. As a result, SZE visited YAU twice, and with his consent, took out cash of $6,500 from his prisoner’s property, and then deposited the same in the bank account of the appellant’s wife as YAU’s repayment to the appellant. (Charge 4)

7.During the same period, through the 3 letters mentioned above, the appellant also arranged for CHAN Kwok-chuen (“CHAN”) to misrepresent himself to be the cousin of an inmate HO Kin-kwok (“HO”) so that CHAN could pay a fraudulent visit to HO and take out money from his prisoner’s property to repay money owed by HO to the appellant. Eventually, through the arrangements by SZE, Instructor LEUNG and others, CHAN managed to obtain $4,000 from the prisoner’s property of HO.  (Charge 5)

8.After being arrested and charged, the appellant appeared in court on 1 November 2016.  The case was adjourned to 2 December 2016 pending the results of the legal aid applications by the appellant and other defendants.  The appellant’s legal aid application was approved on 18 November 2016.  On 2 December 2016, the case was brought up for mention in the District Court, where it was further adjourned to 5 January 2017.  On that day, the appellant did not indicate how he was going to plead or whether he would negotiate with the prosecution the details of his pleas.  The appellant did not show up at the hearing on 5 January 2017 and even absconded.  In the appellant’s absence, the case was set down for trial starting on 18 May 2017 with 14 days reserved, and a pre-trial review was to be held on 3 April 2017.  The appellant was arrested on 25 February 2017 and taken to the District Court on 27 February 2017.  The court set down the case for mention on 7 March 2017.  On 7 March 2017, the case was further adjourned to 23 March 2017.  In the interim, the appellant made a fresh legal aid application and indicated at the mention on 23 March 2017 that he would plead guilty to the charge of failing to surrender to custody without reasonable cause.  On 3 April 2017, the appellant reached an agreement with the prosecution, resulting in pleas of guilty to Charge 1, Charge 4, Charge 5 and Charge 8 by the appellant and Charge 2 and Charge 3 being left on the court’s file.

9.The appellant is aged 48, married, and was educated up to the primary school level.  He stated that he partook in the fraudulent visits in question merely to get back money owed to him and help fellow inmates without causing losses to others. The appellant also stated he was remorseful about the matter.

Reasons for sentence of the trial judge

10.The trial judge pointed out that the appellant was a major participant whose role in the offences was the most involved.  The trial judge was of the view that the appellant did not indicate his guilty pleas before the case was set down and even indicated he would plead guilty only to Charge 8 when the case was set down. The trial judge was of the view that the appellant’s decision to plead guilty to Charge 1, Charge 4 and Charge 5 was not made in a timely manner for the reason that when the case was set down, the appellant only indicated he would negotiate with the prosecution instead of pleading guilty. As such, he was only entitled to a 25% sentencing discount. However, as the appellant had already indicated his guilty plea to Charge 8 when the case was set down, the trial judge gave the appellant a one-third discount for the sentence on Charge 8.

Ground of appeal

11.Mr WONG, on behalf of the appellant, only put forward a single ground of appeal. He submitted that the trial judge should have given the appellant the usual sentencing discount of one third on account of his guilty pleas instead of a mere 25%.

12.Mr WONG stressed that between 5 January 2017 and 3 April 2017, the appellant was still applying for legal aid and engaging in plea negotiations with the prosecution, with whom an agreement on pleas was reached on 29 March 2017. Mr Wong stressed that it was often the case for the Legal Aid Department to hold negotiations with the prosecution when dealing with criminal cases and a defendant would only be able to decide how he was going to plead upon the conclusion of such negotiations. And it was also a frequent occurrence for cases to be adjourned in the above circumstances. Mr WONG contended that it was reasonable for the appellant to indicate his guilty pleas only after an agreement was reached as a result of negotiations between the parties.  This did not mean his decision to plead guilty was not made in a timely manner.

13.Mr WONG considered that the appellant’s conduct did not postpone or delay the case. Therefore, on charge 1, charge 4 and charge 5, the appellant should have been entitled to a sentencing discount of one-third on account of his guilty pleas.

Discussion

14.Whether a defendant has pleaded guilty in a timely manner is to be determined in the circumstances of each individual case.  When a defendant indicates he will plead guilty only after an agreement is reached as a result of negotiations between the parties, it does not necessarily mean his guilty plea is not timely.  It might have been overly arbitrary for the trial judge to say that the appellant’s guilty pleas were not timely simply by stating that when the case was set down, the appellant only indicated he would hold negotiations with the prosecution instead of pleading guilty. However, the background of this case was such that it was absolutely correct for the trial judge to come to the finding that the appellant’s guilty pleas were not timely.

15.The appellant was granted legal aid on 18 November 2016, and the case was brought up for mention on 2 December 2016, and then further adjourned to 5 January 2017.  In the interim, the appellant had close to 2 months to consider and decide how he was going to plead. Therefore, he should have been able to clearly indicate to the court on 5 January 2017 whether he was pleading guilty.  However, the appellant absconded, and thus no pleas could be taken that day.  The appellant deliberately avoided entering timely pleas. In these circumstances, it was absolutely correct for the trial judge to come to the finding that the appellant’s pleas were not timely.

16.This Court has stressed on multiple occasions that it is in the public interest for the court to give a one-third sentencing discount to a defendant who pleads guilty. This is because a defendant’s guilty plea saves public resources that would otherwise be expended on a trial, including the expenses incurred by the court, the prosecution and the Legal Aid Department on such matters as summonsing jurors and witnesses, and shortens the waiting time for other cases needing to be tried.  (see HKSAR v Ma Ming [2013] 1 HKLRD 806 and HKSAR v Ko Chun Hung, unreported CACC 71/2007)

17.We do not agree that the appellant’s conduct did not cause any delay to the case. The appellant’s act of absconding in itself must inevitably result in delay. Furthermore, whether the trial was postponed or delayed was not the only relevant factor, and the court must consider the matter from a more macro perspective.

18.Not only did the appellant not plead guilty in a timely manner but he even absconded when the case was mentioned. The appellant’s absconding led to the following consequences:

(1)  the court had to issue a warrant of arrest in respect of the appellant;

(2)  the prosecution had to put the appellant on the list of wanted persons as per the warrant from the court, and the appellant was arrested on 25 February 2017;

(3)  the court needed no fewer than 3 additional mentions, which were caused by the defendant’s absconding;

(4)  the legal aid originally granted to the appellant was discharged due to his absconding, and after his arrest on 25 February 2017, the appellant made another application for legal aid, which was granted again.

19.The above matters would all waste the time of the court, the prosecution, the police and the Legal Aid Department, resulting in public funds being wasted, whether directly or indirectly. The appellant’s conduct reduced the extent to which public funds could be saved by his guilty pleas, and was contrary to the rationale for sentencing discounts on account of guilty pleas.  In the above circumstances, there was a basis for the court to lower the discount to which the appellant was entitled on account of his guilty pleas.  (see HKSAR v Tse Man Fai CACC 366/2013)

20.We reiterate the following comment by Stock JA in HKSAR v Chow Tak Fuk CACC 428/2004:

“… those who might be minded to flee should not be led to believe that if ultimately they return they will be in no worse a position than had they not fled in the first place.”

21.In HKSAR v Lo Kam Fai [2016] 2 HKLRD 308, this Court held that when a defendant absconds before plea, resulting in time and effort being wasted in the administration of justice, the court is entitled to reduce the one-third discount that should be given for his guilty plea. Doing so does not constitute double punishment but is instead well supported by a reasonable and logical basis.

22.Not only did the appellant not plead guilty in a timely manner but he even absconded, resulting in time and effort being wasted and public funds being squandered in the administration of justice.  It was already extremely lenient of the trial judge to lower the sentencing discount the appellant was entitled to for his guilty pleas to Charge 1, Charge 4 and Charge 5 only from one third to 25%.

23.Furthermore, this was an extremely serious case of conspiracy to defraud. Institutions under the Correctional Services Department are set up to punish and educate inmates who have flouted the law, so that they will obey the law and observe discipline. It is imperative that the Correctional Services Department has a rigorous procedure in place to deal with visitors and prisoners’ property. The appellant conspired with a staff member of the Correctional Services Department and other inmates to strike at the established procedure of the Department by deceit for his personal gain on multiple occasions. The appellant’s crimes had an extremely adverse impact on the tasks of punishment and education undertaken by the Correctional Services Department. What made the matter worse was the involvement of a public officer working for the Correctional Services Department.

24.In our view, it is extremely likely that the starting point of 12 months the trial judge adopted on the offences of conspiracy to defraud failed to adequately reflect the gravity of the relevant offences.

25.In respect of this case, it is our view that, be it on each charge or on totality, not only was the sentence not manifestly excessive at all but it was even extremely lenient. Had careful consideration been given to the facts of the case and the relevant sentencing principles, this appeal against sentence should not have been made at all.

26.Therefore, we affirmed the sentence and dismissed the appellant’s appeal against sentence.

Wong Po Wing, assigned by the Legal Aid Department, for the applicant

Vinci Lam, Senior Assistant Director of Public Prosecutions, and Kasmine Hui, Senior Public Prosecutor (Acting), of the Department of Justice, for the respondent

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.